202099P.pdf   04/07/2022  Brian Dorsey  v.  David Vandergriff
   U.S. Court of Appeals Case No:  20-2099
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Gruender, Author, with Loken and Grasz, Circuit Judges] 
   Habeas Petition - DEATH PENALTY. After pleading guilty to two murders, 
   defendants' counsel did not present evidence or investigate evidence of 
   defendant's adjustment to incarceration. A jury returned verdicts of 
   death, finding seven aggravating factors beyond a reasonable doubt. 
   Post-conviction counsel did not raise the claim of ineffective assistance 
   of counsel for failing to investigate or present evidence of adjustment to 
   incarceration. After exhausting state court remedies, Dorsey filed a 
   petition for writ of habeas corpus in federal court raising claims, 
   including the adjustment to incarceration claim. The district court 
   concluded the ineffective assistance of counsel claim was procedurally 
   defaulted and he could not overcome the procedural default under Martinez 
   v. Ryan because the claim was insubstantial. The district court granted a 
   certificate of appealability as to whether the claim was insubstantial. 
   The district court erred in concluding the substantiality standard in 
   Martinez and the certificate of appealability standard are different, but 
   the error is harmless because the ineffective-assistance claim is 
   insubstantial under either standard. It was reasonable for counsel to 
   focus on portraying Dorsey's crimes as an aberration rather than how he 
   adjusted to incarceration and even if the performance prong of Strickland 
   was met, no reasonable juror could find prejudice. Because neither prong 
   of the ineffective assistance claim is met, the claim fails the Martinez's 
   substantiality requirement and thus Dorsey cannot show cause for his 
   failure to raise the claim in state pos-tconviction proceedings.